AJV

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- 0007

- E Exemption No. 17093

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION WASHINGTON, DC 20591

In the matter of the petition of

UNITED STATES Regulatory Docket No. FAA

- 2015

- 6462

COAST GUARD

for an exemption from § 91.155(a) of Title 14, Code of Federal Regulations

GRANT OF EXEMPTION

By letter dated September 17, 2015, Captain J. B. Kimball , United States Coast Guard (USCG), COMDT CG

- 711 Aviation Forces, 2703 Martin Luther King Jr Avenue Southeast, Washington, DC, 20593

- 7331 petitioned the Federal Aviati on Administration (FAA) on behalf of USCG for an exemption from § 91.155(a) of Title 14, Code of Federal Regulations (14 CFR). The proposed exemption, if granted, would provide relief to USCG Air Operations to operate aircraft under Visual Flight Rules (V FR) when the flight visibility is less, or at a distance from clouds that is less, than that prescribed for the corresponding altitude and class of airspace, for the purpose of carrying out the USCG’s search and rescue mission.

The petitioner requests re lief from the following regulation:

Section 91.155(a) prescribes, in pertinent part, that:

(a) Except as provided in paragraph (b) of this section and § 91.157, no person may operate an aircraft under VFR when the flight visibility is less, or at a distan ce from clouds that is less, than that prescribed for the corresponding altitude and class of airspace in the following table:2

The petitioner supports its request with the following information:

The petitioner states that the USCG has a need to deviate from 14 CFR § 91.155(a) in order to carry out their unique homeland security, law enforcement, and search and rescue responsibilities. The petitioner cites Title 6 U.S.C. § 468, as the USCG’s authority to conduct

non

- homeland security and homeland securit y missions. The petitioner also provides that

search and rescue is defined as a non

- homeland security mission of the USCG 1

.

1 6 USC § 468(a)(1)(B)3

Additionally, the petitioner states that the USCG currently holds Exemption No. 10055 2
which exempts the USCG from §§ 91.117(b) and (c), 91.119 (c), 91.155(a), 91.159(a), and 91.209(a) and (b) of 14 CFR for law enforcement, and the USCG requests an exemption to § 91.155(a) for the additional statutory missions of search and rescue, urgent law enforcement and certain Homeland Security operations deemed critical for n ational s ecurity. The petitioner states that the USCG has a unique operational requirement to operate in the most extreme weather conditions in order to accomplish its non

- homeland security and homeland security

missions. Th e petitioner provides that in accordance with USCG guidance, USCG flights are

conducted under i nstrument f light r ules (IFR) whenever practical 3 . However, there are certain situations in which FAA regulations and Department of Defense guidance do not allow the operational flexibility required to successfully complete the USCG’s statutory missions of non

homeland security and homeland security missions. It is for this reason that an exemption from § 91.155(a) is required.

Further, the petitioner provide d mitigations to provide a level of safety at least equal to that provided by § 91.155(a):

1. The USCG shall promulgate local operating procedures that include specific de

confliction measures, tactical communications plans, low

- visibility routes, and tr aining programs to prepare aircrews for potential operations under this exemption.

2. The USCG shall establish agreements and procedures with affected air traffic facilities and airspace user groups for operations under this exemption.

3. The USCG sh all incorporate risk mitigation strategies during their preflight planning to specifically address operations under this exemption.

4. USCG Aircraft Commanders (ACs) shall ensure that air traffic understands the operational intent, expected route of fli ght, and pilot’s plan for regaining communications and IFR clearance or attaining Visual Meteorological Conditions (VMC).

5. USCG ACs shall broadcast their intentions on applicable common or guard frequencies before initiating operations under this exem ption, and shall utilize all available resources (e.g., High Frequency (HF), Satellite Communications (SATCOM), Aeronautical Radio Incorporated (AIRINC), aircraft relay) to acquire an IFR clearance as soon as possible.

6. USCG ACs shall utilize all onbo ard applicable sensors, radar, and Traffic Alert and Collision Avoidance System (TCAS) to enhance situational awareness, and avoid other

traffic and terrain.

2 Regulatory Docket No. FAA

- 2002

- 11723

- 0013

3 Coast Guard Air Operations Manual, COMDTINST 3710.1 (series)4

7. The USCG shall incorporate specialized training for operations under this exemption into requ ired initial and semiannual recurrent training.

Finally, the petitioner states that the USCG anticipates operations of this nature to be required outside of the United States, and will not be in compliance with International Civil Aviation Organization ( I CAO ) standards. The USCG requests that the FAA file a request for exemption to operate under this exemption outside of the United States. 4 The petitioner has requested an exemption to ICAO Annex 2, Chapter 3, Section 3.9. 5

Although the petiti oner requested that the FAA waive publication in the Federal Register due to operational security reasons, the FAA found that the petition, if granted, would set a precedent. Therefore, to allow an opportunity for the public to comment on the petition, a summary of this petition was published in the Federal Register on January 12, 2016 (81 FR 1468). No comments were received.

The FAA’s analysis is as follows:

In their exemption request, the USCG states their requirement to deviate from § 91.155(a) in ord er to carry out their unique homeland security, law enforcement and search and rescue responsibilities. 6 The FAA finds that the USCG is already granted an exemption from 14 CFR § 91.155(a) in order to carry out their drug law enforcement, drug traffic

inte rdiction missions or assigned homeland security missions. 7 Therefore, the FAA’s analysis and decision will focus solely on relief from § 91.155(a) for the purpose of search and rescue

missions.

On December 24, 2009 the USCG petitioned the FAA for an exem ption to § 91.155(a) (among others) for the USCG to operate in weather less than prescribed in the part in order to

execute search and rescue missions and to interdict, identify, and signal aircraft during National Defense air intercept operations. 8 In res ponse to the request the FAA granted the USCG a 3

- year exemption from § 91.155(a) (among others) to conduct air operations in support of drug law enforcement, drug traffic interdiction missions or assigned homeland security missions. 9
The FAA has granted t wo extensions since the initial grant.

The search and rescue mission of the USCG is defined as a non

- homeland security mission, while drug interdiction and law enforcement are defined as homeland security

missions. 10 Although the USCG requested relief fro m § 91.155(a) (among others) for the purpose of search and rescue and homeland security missions, relief from § 91.155(a) was only granted for homeland security missions. The exemption states, “Relief from the provision of
§ 91.155(a) is granted only to th e extent necessary to conduct aircraft operations in support of

4 14 CFR § 11.83

5 ICAO Annex 2 to the Convention on International Civil Aviation, R ules of the Air, page 3

- 9

6 Regulatory Docket No. FAA

- 2015

- 6462

- 0001

7 Regulatory Docket No. FAA

- 2002

- 11723

- 0017

8 Regulatory Docket No. FAA

- 2002

- 11723

- 0010

9 Regulatory Docket No. FAA

- 2002

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10 6 USC § 4685

drug law enforcement, drug traffic interdiction or assigned homeland security missions.” 11 The original grant of exemption does not address the rationale behind limiting the relief in the

exemp tion to homeland security missions but not for search and rescue missions. The USCG has been safely and successfully conducting drug law enforcement, drug traffic interdiction, and other homeland security missions, under exemption from § 91.155(a), with ce rtain conditions and limitations, since April 2010. Additionally, the USCG has been safely and successfully conducting search and rescue missions under certain part 91 exemptions, not including § 91.155(a), since April 2010.

The FAA recognizes that t he USCG has the statutory requirement to conduct missions

defined as homeland and non

- homeland security missions, including search and rescue

missions. 12 Additionally, the FAA acknowledges that effective and efficient search and rescue missions may necessit ate aircraft operations in weather conditions below basic VFR weather minimums. The FAA further recognizes that search and rescue operations are in the public interest. However, air safety regulations are similarly in the public interest, as they promote

f light safety and the protection of life and property. Therefore, the granting of relief from provisions of the CFR will be limited to conduct search and rescue operations to the extent that alternate measures can be employed to provide a level of safety eq uivalent to the rule from which relief is granted.

Air Traffic Control (ATC) radar systems which can detect the presence of other aircraft operating in the vicinity of a USCG aircraft along with the means to communicate that information to the USCG pilo t in a timely manner, can provide supplementary traffic information to assist the pilot in seeing and avoiding other aircraft. Air traffic control radar traffic advisory service or USCG resources may provide this supplemental information, and the

utilizati on of ATC services is encouraged. However, in the case of ATC traffic advisories, adequate radar coverage may not be available in all areas nor will an ATC facility always have the resources available to provide those advisories. Aircraft

- based onboard sen sors, radars, and Traffic Alert and Collision Avoidance System (TCAS) can enhance the pilot’s situational awareness and be used to avoid other traffic and terrain. Pilots may broadcast their intentions on applicable common or guard frequencies before initi ating operations in order to alert other aircraft in the area to their intended operation. Additionally, a dedicated observer onboard the aircraft, with the sole responsibility to assist the pilot in detecting and avoiding other aircraft,

serves to further supplement the pilot’s situational awareness. Further, understanding and awareness by ATC of the USCG aircraft’s operational intent, route of flight, and plan for regaining communications and/or attaining v isual m eteorological c onditions (VMC) , if the

sit uation dictates, serves to increase the situational awareness of the ATC facility. These types of search and rescue missions, conducted in cloud clearance and visibility conditions below the requirement for VFR aircraft operations, are often done so in wea ther conditions that precludes other aircraft from operating simultaneously at the same locations. Under this exclusionary operating environment, and by using technology onboard the aircraft, aircraft

- to

- aircraft and

aircraft

- to

- ATC communications plans, a nd a dedicated visual observer, operations under exemption from the rule may be conducted safely.

11 Regulatory Docket No. FAA

- 2002

- 11723

- 00 17

12 6 USC § 4686

The petitioner states that they anticipate a need to conduct search and rescue operations under exemption from ICAO standards outside the United Stat es. The FAA finds that the USCG can conduct search and rescue missions outside the United States, without complying with VMC visibility and distance from cloud minima requirements, under “due regard” in accordance with current FAA and DoD guidance. Therefo re, exemption from ICAO requirements to conduct search and rescue operations outside the United States is not

necessary.

The FAA’s Decision

In consideration of the foregoing, I find that a grant of exemption is in the public interest. Therefore, p ursuant to the authority contained in 49 U.S.C. §§ 106(f), 40103, 40113 and 44701, delegated to me by the Administrator, United States Coast Guard is granted an exemption from

14 CFR § 91.155(a) to the extent necessary to allow USCG to operate an aircraft under VFR when the flight visibility is less, or at a distance from clouds that is less, than that prescribed for the corresponding altitude and class of airspace, for the purpose of carrying out the USCG’s search and rescue mission, subject to the conditi ons and limitations listed below.

Conditions and Limitations

1. The pilot of an aircraft engaged in operations authorized herein is not relieved from the

see

- and

- avoid requirements of § 91.113, “Right of way rules: Except water operations”, or any other requ irements of 14 CFR not specifically relieved under this exemption.

2. Operations under this exemption are authorized only to the extent necessary for search and rescue aircraft to accomplish the assigned USCG mission. Operations may be

conducted without meet ing the requirements of § 91.155(a) provided:

a. A dedicated observer having the sole responsibility to assist the pilot in detecting and avoiding other aircraft is onboard the aircraft;

b. Radio communication is established with the appropriate ATC facility b efore entering the affected airspace and be maintained for the duration of the operation within that airspace. If radio communication cannot be maintained for the duration of the operation, pilots must ensure that air traffic understands the pilot’s plan f

or regaining communications. The use of air traffic advisory service, when available, is highly recommended. However, this grant of exemption should not be construed as obligating any ATC facility to provide air traffic advisory service. The receipt of air traffic advisory service does not relieve the USCG pilots from the responsibility to see

- and

- avoid other aircraft;

c. Pilots comply with any instructions or clearances from the ATC facility;

d. Pilots shall ensure that air traffic understands the operational intent, expected route of flight, and pilot’s plan for regaining communications (if necessary) and IFR clearance or attaining Visual Meteorological Conditions (VMC).7 e. Pilots shall broadcast their intentions on applicable common or guard frequencies befor e initiating operations under this exemption, and shall utilize all available resources (e.g., High Frequency (HF), Satellite Communications (SATCOM), Aeronautical Radio Incorporated (AIRINC), aircraft relay) to acquire an IFR clearance as soon as possible

.

f. Pilots shall utilize all onboard applicable sensors, radar, and Traffic Alert and Collision Avoidance System (TCAS) to enhance situational awareness, and

avoid other traffic and terrain.

3. The petitioner must ensure that all aircraft used to conduct ope rations under this exemption are equipped with an operable transponder with automatic altitude reporting capability (Mode C) that is transmitting on the appropriate code or as assigned by ATC.

4. This exemption, and the conditions and limitations contained within, is only authorized to be performed in airspace that overlies the coastline of the United States and territorial waters, not to exceed 12 nautical miles (NM) from the coastline of the United States. Operations beyond 12 NM may be conducted under “du e regard” in accordance with applicable ICAO, FAA, and Department of Defense guidance. Operations beyond 12 NM from the coastline of the United States but within the airspace and territorial waters of another sovereign nation must be conducted under the ap propriate ICAO procedure guidance.

5. This exemption applies to USCG and USCG Auxiliary manned aircraft only. Unmanned aircraft are prohibited from operating under this exemption.

6. The petitioner shall promulgate local operating procedures that include spe cific de

confliction measures, tactical communications plans, low

- visibility routes, and training programs to prepare aircrews for potential operations under this exemption.

7. The petitioner shall establish agreements and procedures with affected air traffi c facilities and airspace user groups for operations under this exemption.

8. The petitioner shall incorporate risk mitigation strategies during their preflight planning to specifically address operations under this exemption.

9. The petitioner shall incorp orate specialized training for operations under this exemption into required initial and semiannual recurrent training.8

10. The petitioner must ensure that all pilots and crewmembers who will conduct aircraft operations under the authority of this exempt ion are thoroughly briefed and have a complete understanding of the conditions and limitations of this exemption.

This exemption terminates on September 30, 2018 , unless sooner superseded or rescinded.

Issued in Washington, D.C., on 8 September 2016

. .

/s/

Gary No rek

Director

, Airspace Services Air Traffic Organization9

Project No.: AJV

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- 0007

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Project Officer: _______________

ARM

- 10 2 : DWilliams : ARM

- 1/100/10 2 :Program Office AJV

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Captain James O’Keefe

COMDT CG

- 711 Aviation Forces 2703 Martin Luther King Jr Avenue SE Washington, DC 20593

- 7331